1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANK MONACO BAZZO, Case No. EDCV 20-02095 CJC (RAO)

12 Petitioner, ORDER SUMMARILY

DISMISSING SUCCESSIVE

13 v. PETITION FOR WRIT OF HABEAS

CORPUS FOR LACK OF

14 STU SHERMAN, Warden, JURISDICTION AND DENYING

CERTIFICATE OF

15 Respondent. APPEALABILITY 16 17 I. BACKGROUND 18 On October 5, 2020, petitioner Frank Monaco Bazzo (“Petitioner”) filed a 19 Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant 20 to 28 U.S.C. § 2254. Petitioner seeks habeas relief from his current state custody 21 arising from his 2008 conviction in Riverside County Superior Court. (Pet. at 1, Dkt. 22 No. 1.) 23 The records of this Court establish that Petitioner has instituted at least four 24 prior habeas actions concerning his 2008 conviction. See Bazzo v. Asuncion, No. 25 5:17-cv-01583-CJC-RAO (C.D. Cal. filed Aug. 7, 2017); Bazzo v. Asuncion, No. 26 5:16-cv-02000-CJC-DTB (C.D. Cal. filed Sept. 20, 2016); Bazzo v. Asuncion, No. 27 5:16-cv-01403-CJC-DTB (C.D. Cal. filed June 29, 2016); Bazzo v. Soto, No. 28 1 5:12-cv-02112-CJC-DTB (C.D. Cal. filed Nov. 30, 2012).1 In Petitioner’s three most 2 recent habeas actions, the petition was denied as an unauthorized second or 3 successive petition. See Order Summarily Dismissing Petition for Writ of Habeas 4 Corpus for Lack of Jurisdiction, Bazzo v. Asuncion, No. 5:17-cv-01583-CJC-RAO 5 (C.D. Cal. Aug. 11, 2017), ECF No. 3; Order Summarily Dismissing Petition for Writ 6 of Habeas Corpus for Lack of Subject Matter Jurisdiction, Bazzo v. Asuncion, No. 7 5:16-cv-02000-CJC-DTB (C.D. Cal. Oct. 4, 2016), ECF No. 3; Order Summarily 8 Dismissing Petition for Writ of Habeas Corpus for Lack of Subject Matter 9 Jurisdiction, Bazzo v. Asuncion, No. 5:16-cv-01403-CJC-DTB (C.D. Cal. July 15, 10 2016), ECF No. 5. 11 A review of the instant Petition demonstrates that Petitioner again seeks federal 12 habeas relief concerning the same 2008 conviction. (Pet. at 1.) Neither the Petition 13 itself nor the records of the Ninth Circuit establish that the Ninth Circuit has 14 authorized Petitioner to bring a successive petition in this Court. 15 II. DISCUSSION 16 The United States Supreme Court has explained: 17 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a 18 prisoner “in custody pursuant to the judgment of a State 19 court,” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application 20 challenging that custody, § 2244(b)(1). In pertinent part, 21 before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order 22 authorizing the district court to consider the application.” 23 § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive 24 application only if it presents a claim not previously raised 25 that satisfies one of the two grounds articulated in § 26 1 The Court takes judicial notice of these court records and files as well as those of the Court 27 of Appeals for the Ninth Circuit, as necessary herein. See Fed. R. Evid. 201(b)(2); Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012); United States v. Wilson, 631 F.2d 118, 119 28 (9th Cir. 1980). 1 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 529-530, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005); 2 see also Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 3 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). 4 Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007). 5 The Court finds that Petitioner’s present Petition is clearly a “second or 6 successive” habeas petition. Moreover, the Petition and records of the Ninth Circuit 7 establish that Petitioner has not sought and been granted authorization by the Ninth 8 Circuit to file a successive petition to raise his claims. 9 Petitioner’s arguments regarding California Senate Bill No. 1437, which was 10 subsequently enacted into law, and his assertions that he is innocent of the charges 11 on which he was convicted suggest that Petitioner attempts to fall within one of the 12 28 U.S.C. § 2244(b)(2) exceptions to the successive-petition bar. Regardless, 13 Petitioner still must first present any such claim to the Ninth Circuit, not this Court. 14 See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted 15 by this section is filed in the district court, the applicant shall move in the appropriate 16 court of appeals for an order authorizing the district court to consider the 17 application.”). 18 For these reasons, the Court finds that it lacks jurisdiction to consider the 19 Petition. Therefore, the reference to the Magistrate Judge is vacated and the Petition 20 is dismissed for lack of jurisdiction. See Burton, 549 U.S. at 152-53. The Clerk is 21 directed to enter judgment dismissing the Petition. 22 III. CERTIFICATE OF APPEALABILITY 23 Under AEDPA, a state prisoner seeking to appeal a district court’s final order 24 in a habeas corpus proceeding must obtain a Certificate of Appealability (“COA”) 25 from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may 26 issue “only if the applicant has made a substantial showing of the denial of a 27 constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by 28 demonstrating that jurists of reason could disagree with the district court’s resolution 1 | of his constitutional claims or that jurists could conclude the issues presented are 2 || adequate to deserve encouragement to proceed further.” Miller-El vy. Cockrell, 537 3 || U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). 4 When the Court dismisses a petition on procedural grounds, it must issue a 5 || COA if the petitioner shows: (1) “that jurists of reason would find it debatable 6 || whether the petition states a valid claim of the denial of a constitutional right’; and 7 || (2) “that jurists of reason would find it debatable whether the district court was 8 || correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 9 || 1595, 146 L. Ed. 2d 542 (2000). 10 Here, the Court is dismissing the Petition without prejudice because it is a 11 || successive petition without proper authorization from the Ninth Circuit. Since the 12 || Petition is patently a successive petition, Petitioner cannot make the requisite 13 || showing that jurists of reason would find it debatable whether the district court was 14 || correct in its procedural ruling. 15 IV. QRDER 16 Based on the foregoing, IT IS ORDERED THAT: 17 1. The Petition is DISMISSED without prejudice for lack of jurisdiction; and 18 2. A Certificate of Appealability is DENIED. 19 Ko fe 20 || DATED: October 9, 2020 4 f □ 21 — é —

CORMAC J. CARNEY

3 UNITED STATES DISTRICT JUDGE || Presented by: 5) Rapes, a.

27 || UNITED STATES MAGISTRATE JUDGE 28